A:

It depends. Employers have to pay hourly nonexempt employees only for the hours they work. Exempt employees have to be paid for any workweek in which they perform work (even if it is minimal). If an employer wants to avoid payment obligations, the employer should instruct exempt employees not to perform any work during the closure.

It is up to the employer and the employer’s policy whether to allow employees to use accrued vacation or paid time off during the closure. Employees in states with paid sick leave laws (including Washington, Oregon, and California) should consult their attorney regarding employees’ ability to use accrued paid sick leave during a COVID-19-related business closure.

Employers also need to consider whether the temporary shut-down or closure will be a qualifying event under COBRA. In either case, employees who are off work due to a temporary shut-down may be able to collect unemployment insurance, depending on state law (and are able to do so in Washington, Oregon, and California).

A:

For an employer that does not plan to lay employees off, in the case of a government-forced closure, you should tell employees that the government has ordered the company to close due to COVID-19-related concerns. You may advise employees that they will receive their paychecks on the next regularly scheduled payday (with nonexempt employees being paid only for the hours they have worked and exempt employees being paid only for the last week in which they have worked). You can tell employees that if they have paid time off they may use it going forward; otherwise; they will cease to be paid. Employees should also be advised of their likely ability to collect unemployment insurance based on a reduction in hours. However, unemployment benefits decisions are ultimately made by state employment departments, so do not promise employees they will receive unemployment.

Any employees who are laid off (temporarily or not) should receive the same notice that the government has ordered the company to close due to COVID-19-related concerns. Employees should receive their final paychecks no later than the next business day after the layoff. If your company has a policy or practice of paying terminated employees for their accrued vacation, sick, or other paid time off upon termination, those amounts should be included in the final paycheck. (If you do not pay out accrued balances, be aware that some state sick leave laws will require you to reinstate those amounts if an employee is rehired within a certain period of time.) You should also notify employees who are laid off about unemployment benefits.

A:

Yes, employers can tell employees returning from an affected area or who have been exposed to a person with the disease to stay home (or send them home). In doing so, be sure there is a factual basis for the decision to exclude employees from the workplace and that you are not discriminating against them because of their national origin or race.

If you decide to send someone home, you generally do not have to pay him or her, subject to the limitations discussed above (for example, the requirement that exempt employees receive a full day’s pay even if they only work a portion of the day) and below (if the employee otherwise qualifies for paid time off under state or federal law or employer policy). Employers may, however, choose to do so.

A:

Yes, you can send employees home who appear to be sick or show signs of illness and advise them that they cannot return to work until they have been symptom-free for a certain period of time or are cleared by their medical provider.

You can also require a doctor’s release before an employee returns to work. Given the current burden on the healthcare system, however, there may be practical issues with requiring a doctor’s note, and you may need to be flexible about that requirement. Telling the employee to stay home for 14 days is one alternative.

A:

Yes. The time off will be covered under the federal Families First Coronavirus Response Act (“FFCRA”), which was just passed this week and will take effect no later than April 2, 2020. A summary of the FFCRA is here and there are additional FAQs below.

Additionally, state law applies. Most state sick leave laws provide that employees have the right to use accrued sick time for a closure of their children’s schools or places of care by order of a public official due to a public health emergency. If the employee does not have any available sick time and if your company does not have other policies providing for leave in this type of situation, you do not need to provide the employee with time off.

Moreover, Oregon’s Bureau of Labor and Industries has expanded eligibility under OFLA for parents whose child’s school or daycare is closed due to COVID-19. Those parents are now eligible for a protected, unpaid leave of absence under OFLA.

As a practical matter, for employers covered by both OFLA and the new FFCRA that provides for paid family leave, the unpaid OFLA leave and the paid FMLA would run concurrently in most circumstances.

A:

Yes, typically. Employers have a duty to provide employees with a safe and healthy workplace that is free from recognized serious hazards, a duty that needs to be balanced with the privacy rights of the employee who has been diagnosed. In this situation, an employer should inform employees who may have been exposed that someone they work with has tested positive, without exposing the identity of the particular employee (e.g., an employee on floor X has tested positive, or an employee who works Y shift has tested positive). Employees should also be notified of the steps you are taking to keep the workplace safe (such as cleaning, allowing remote work, and facilitating social distancing). Employers may also ask the affected employee to name the individuals with whom he or she has worked closely in the past few weeks, and have a more targeted conversation with those individuals.

A:

During the current COVID-19 crisis, yes, pursuant to recent EEOC guidance. Keep in mind, however, that not all individuals infected with COVID-19 have a fever, or even show any symptoms at all. Testing should be done on a non-discriminatory basis by a designated individual or group of individuals, keeping in mind employee privacy concerns. (In other words, line supervisors should not be doing the temperature checks.) If an employee is showing symptoms, you may of course send the employee home.

A:

Tread carefully. While we all want to keep our employees safe, the prohibitions against age discrimination and disability discrimination still apply. While it’s fine to request that employees who the CDC has identified as “high-risk” to take leave or work from home, you cannot require them to do so if that would mean treating them differently from other employees outside of their protected class.

A:

Assuming the employee doesn’t qualify for sick leave, FMLA, or some other sort of protected leave, an employee is only generally entitled to refuse to come to work if the employee reasonably believes he or she is in imminent danger, as defined by OSHA, and has asked you to eliminate the danger and you have refused to do so. The threat must be imminent, meaning that an employee believes that death or serious harm could immediately occur before OSHA would have time to investigate the problem. Absent unusual circumstances, most workplaces will not meet this threshold. This means that employees who refuse to come to work but who are not eligible for any type of protected leave under law or your policy may be subject to discipline, including termination.

Tread carefully, however, with respect to employees who might be considered “high risk” due to pregnancy or a chronic health condition (such as diabetes or cardiovascular or respiratory issues), particularly if the employee provides a doctor’s note recommending that the employee stay home during this time. Allowing the employee to work remotely or to take unpaid leave may be required as a reasonable accommodation under the ADA, the Pregnancy Discrimination Act, or applicable state law.

A:

Treat this like you would any other ADA accommodation request. Engage in the interactive process with her, which may include having her provide documentation from her medical provider supporting her determination that she is high risk. If allowing her to work from home is not feasible, explore other accommodations that might enable her to safely remain in the workplace, or provide her with leave. If you decide to permit her to work from home, make clear that it is a temporary arrangement.

A:

Probably, but it depends on the state. In most states, employees can collect unemployment if they lose hours due to a business slowdown or temporary closure. Additionally, in response to COVID-19, many states are adopting emergency rules to expand access to unemployment insurance (see Oregon example here). We expect that trend to continue.

A:

Yes, but be careful not to discriminate in who is selected for termination or layoff. Employees should not be terminated or laid off because they are on protected leave or will need to take protected leave in the future; rather, any consideration of layoff eligibility should be based on business needs.

A:

Probably yes. The FFCRA states that it cannot be construed to “diminish” the rights or benefits that an employee is entitled to under federal, state, or local law or existing employer policy, and that “[a]n employer may not require an employee to use other paid leave provided by the employer to the employee before the employee uses the paid sick time under [the FFCRA].” In other words, the FFCRA appears to be provide a new, standalone leave entitlement to covered employees.

A:

Yes. Non-profit employers are eligible for a social security payroll tax credit like all other employers subject to the FFCRA.

A:

It is not 100% clear, but the definitions from the FMLA appear to apply to the FFCRA. Employers who may be considered joint or integrated employers under the law, or have doubt about which employees to count, should consult with their counsel because determining employee count is a highly fact-specific inquiry that may involve additional strategic considerations.

A:

No, if you are a private sector employer. The vast majority of public employers are covered under the FFCRA, regardless of employee count, including public agencies and state governments.

A:

No, the FFCRA is not retroactive. Employees are only entitled to benefits going forward from the date the FFCRA takes effect.

A:

Most likely, no. Employees on temporary layoff are not absent for a qualifying reason – they are absent because their employer has no work for them.

A:

No. Employees are entitled to a certain amount of leave on the date the FFCRA becomes effective, so employers cannot preemptively reduce that entitlement because they already provided similar benefits before the effective date.

A:

Just COVID-19-related FMLA leave under the FFCRA.

A:

The employee would not be entitled to additional FMLA leave under the FFCRA.